June 29, 2009

The concurring opinion in the Ricci v. DeStefano case (won by Ricci on a 5-4 vote) by Justice Sam Alito, with Thomas and Scalia supporting, attacks the trustworthiness of Ginsburg's retelling of the Ricci story in her dissent.

The funny thing is how much juicier Alito's Supreme Court opinion is than that 5000 word article by Emily Bazelon in Slate that I dismantled on today's VDARE. The Slate article is full of disingenuous Pontius Pilateisms like:

No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like.

Well, I know the names of five guys in Washington who did a pretty good job of imagining what fair could possibly look like. For the New Haven 20, after five and a half years of injustice, fair finally looks like this:

The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Alito first goes thru some judicial throat-clearing, which, by Supreme Court standards, is pretty much the equivalent of pointing at Madame Justice Ginsburg and chanting Liar, Liar, Pants on Fire:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. ...

Now, here's the fun part of Alito's concurrence that demonstrates once again how what in theory is the Sacred Cause of Diversity turns out in practice to be just Old-School Tammany Hall Skullduggery. (Once again we see that political correctness, as in the Slate article, is just plain boring. The truth is always interesting because you can see the network of cause and effect connections. But when you're trying to pull the wool over everybody's eyes, all you can see is gray fuzz.)

As initially described by the dissent, ... the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” ...

This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” ... On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” ...

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. ... “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” ... According to theMayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”...

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” ... In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’”... After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ... but he remained on the BFC and retained “a direct line to the mayor,”...

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” ... Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. ... As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor....

On January 12, 2004, Tina Burgett (the director of the City’s Department of Human Resources) sent an e-mail toDubois-Walton to coordinate the City’s response to the test results. Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with theMayor (possibly) and then the two Chiefs.” ... The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American). Both chiefs believed that the test results should be certified. ... Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regard-ing the matter.” ...

The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. ... “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.”... But according to Legel, Dubois-Walton was “argumentative”and apparently had already made up her mind that the tests were “‘discriminatory.’” ... Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” ... “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.” ...

On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. ... Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private....

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. ... The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public): “I wanted to make sure we are all on the same pagefor this meeting tomorrow. . . . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” ...

On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whitesand one Hispanic and no blacks. . . . I would hope thatyou would not put yourself in this type of position, apolitical ramification that may come back upon you asyou sit on this [Board] and decide the future of adepartment and the future of those who are beingpromoted. ... “(APPLAUSE).” ...

One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” ... The offended CSB member eventually voted not to certify the test results. ...

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. ... After some firefighters applauded in support of certifying the test results, “Lt. Tinney ex-claimed, ‘Listen to the Klansmen behind us.’”...

Tinney also has strong ties to the Mayor’s office. ... After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Tinney alleged that the white firefighters had cheated on their exams—an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. ... The allegation turned out to be baseless. ...

Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. ...

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” ... but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” ... The Chairman of the CSB immediately corrected Hornick. ... (“Actually, it was, Dr. Hornick”). ... Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered ... the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt]quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way—a better mousetrap.” ... Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test.

In a footnote, Alito points out:

The City’s heavy reliance on Hornick’s testimony makes the two [fire] chiefs’ silence all the more striking. ... While Hornick knew little or nothing about the tests he criticized, the two chiefs were involved “during the lengthy process that led to the devising of the administration of these exams,” ... including “collaborating with City officials on the extensive job analyses that were done,” “selection of the oral panelists,” and selection of “the proper content and subject matter of the exams" ...

Alito continues:

At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results—even if the CSB ultimately voted to certify them. ... Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. Id., at 457a. The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocation of his executive authority) if the CSB voted to certify the test results. ...

Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”

In practice, "Disparate Impact" turns out to be just a fancy name for the kind of 19th Century corruption that Civil Service testing was instituted to abolish in the first place.

Alioto was the mayor of San Francisco when I was a kid, so, on the whooping crane-whooping cough principle that only the first few letters in a word are remembered, that's how I spell the Supreme Court Justice's name.

Consider yourself lucky not to be represented by the likes of Rep. Linda Sanchez of CA's 39th District. Her reaction to the Ricci decision is as follows:

"Buried in all the 'reverse racism' attacks Republicans are trying to cultivate is the fact that the promotion tests were flawed. The regatta question is nothing new in decades of critique of cultural bias. In fact, until recently, the SAT continued to use items about polo mallets, lacrosse, and regattas. How likely is a poor kid from the inner city to spend his or her weekend attending a regatta? I'll never forget taking one standardized test and being asked a question where the correct answer was; church: silence. Growing up on the west coast and attending masses where mariachi music filled the room, my church was anything but silent. Culturally-loaded tests don't reveal career potential but rather socio-economic class and background. No one should be surprised then when a city decides to throw out a test because only one type of person was able to pass.

In her dissent, Justice Ginsburg mentions that better tests in other cities have produced less racially skewed results. The firefighters who were able to pass the test had no vested right to a promotion and no other persons have received promotions in preference to them. The City of New Haven and the Judges who upheld the city's action were right to notice that one test produced a flawed result. It was part of an ongoing inequality in the New Haven fire department where out of 21 fire captains, only one was African-American. We should be applauding them for recognizing a cultural bias before it produced any real damage. Unfortunately, today the Supreme Court took a step back in the progress society has made by giving the regatta question a bewildering comeback."

The regatta question is nothing new in decades of critique of cultural bias. In fact, until recently, the SAT continued to use items about polo mallets, lacrosse, and regattas. How likely is a poor kid from the inner city to spend his or her weekend attending a regatta?

Yes, Im sure all the white firefighters spent most of their childhoods on yachts, drinking tea out of cups held in saucers, and played polo in their spare time. Don't all white people do those things?

In this inadvertently devastating portrait, we see the chief judge of America's second most powerful court busily reshaping Anglo-American Constitutional law according to his Jewish outsider's sense of compassion, while conspiratorially winking at his young law clerk. Equally revealing is Dershowitz's tribute to Bazelon and his other mentor, Supreme Court Justice Arthur Goldberg: "[T]heir Jewishness--their rachmones--resonated in me more powerfully than the Jewishness of ritual." [Ibid., p. 60]. It is clear that these secular Jews, leading architects of the modern omnicompetent state, regard the liberal agenda as an emotionally fulfilling substitute for the religious tradition they have cast aside..

The problem is that the most predictive tests have the greatest disparate impact:

"The most distinctive thing about the test is what it omitted--virtually any measurement of cognitive (mental) skills. Although the project's careful job analysis had shown that "reasoning, judgment, and inferential thinking" were the most critical skills for good police work, the final "implementation" version of the exam (the one used to rank applicants) retained only personality ("non-cognitive") scales such as "Achievement Motivation," "Openness to Experience," and "Emotional Stability." The reading component of the "experimental" test battery (the version actually administered to applicants the year before) was regraded pass-fail; to pass that test, applicants only had to read as well as the worst one percent of readers in the research sample of incumbent police officers. Nor did failing the reading component disqualify an applicant, because the final exam score was determined by combining the scores from all nine tests. Not mincing words, Frank Schmidt (1996a, b) predicted that the test would be "a disaster" for any police force that used it.

The major legal dilemma in selection is that the best overall predictors of job performance, namely, cognitive tests, have the most disparate impact on racial-ethnic minorities. Their considerable disparate impact is not due to any imperfections in the tests. Rather, it is due to the tests' measuring essential skills and abilities that happen not to be distributed equally among groups (Schmidt, 1988). Those differences currently are large enough to cause a major problem. U.S. Department of Education literacy surveys show, for example, that black college graduates, on the average, exhibit the cognitive skill levels of white high school graduates without any college (Kirsch, Jungeblut, & Kolstad, 1993, p. 127)."

I once explained the "regatta problem" to a Japanese woman, raised and educated in Japan. She nearly died laughing, saying "Even we know know what that word means." The absurdity of the complaint was apparent even to her--a non-native speaker of English.

I remember reading (perhaps from Steve) that the regatta question was not biased against blacks, because the racial gap in it between whites and blacks was the same as the gap in other similarly difficult (for whites) questions.

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